Jarrod Shapiro, DPM Practice Perfect Editor Assistant Professor Dept. of Podiatric Medicine Surgery & Biomechanics College of Podiatric Medicine Western University of Health Sciences St. Pomona, CA

It's Your Fault, Doctor

At the time of writing this, I had just spent two lovely hours listening to a lecture on malpractice mitigation/risk management. Let me set the tone by saying that by about midpoint in the lecture, the audience was palpably hostile and angry.

This reason for this anger was the manner in which the information was presented. In essence, it boiled down to, "You're the doctor, so for every problem and complication, it's your fault." By the end of the lecture, several of the faculty had created this as a running joke. Now, whenever something happens – it doesn't matter if it's completely out of my control – it is my fault.

I think the speaker was attempting to honestly portray the medicolegal system and its ramifications on us as providers, thinking if we were made aware of the environment, we would be open to taking further steps in our practices to mitigate the risk. Unfortunately, it simply managed to make all of us hot under the collar.

During the lecture, the audience was made aware of some very interesting statistics coming out of a recent Medscape physician survey.¹ Take a look at the link in the references section for an interesting slide presentation on this topic.

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Here are the highlights from the Medscape survey.

I find it striking that the lowest two specialties of these ten are the surgical ones (minus OB/GYN). I can imagine that podiatry could be rationally lumped in with orthopedics, in which case we would be lower down on the list of doctors being sued. Of course, we might be lower yet, since orthopedics covers a larger body area and does potentially more trauma care.

Most malpractice claims are against primary care physicians due to "failure to diagnose." The most common reasons for lawsuits were for the following missed diagnoses and errors:

I've heard many in podiatry argue that we don't get sued for not doing surgery (somehow making this an argument against doing foot and ankle surgery). It seems clear that the majority of podiatric lawsuits would come from surgery, because this is the highest risk area of our profession.  Primary care, on the other hand, deals with more complex nonsurgical issues than we do, thus setting them up for lawsuits. Compare, for example, missing a diagnosis of pediatric meningitis with missing a plantar fasciitis diagnosis. Which one would YOU rather miss? Despite this potentially greater medicolegal risk for surgery, it is still a powerful treatment method, and I don't plan to give it up any time in the near future.

Here are some more interesting statistics from the Medscape study:

Physicians surveyed had the following advice for the rest of us:

I would add two more pieces of advice:

Where's the Patient's Responsibility?

Interestingly, I just heard that in California there is a petition to put a bill on the state ballot that would modify the current $250,000 noneconomic damages cap to $1,000,000. This measure curdles my stomach, because anyone who thinks this is meant to help patients is deluded. The only people who really seem to profit from these malpractice suits are the lawyers. No offence to any lawyers reading this, but it's the truth.

During the lecture, many questions were asked, but at the bottom line all of the questions were asking the same thing: where is the patient's responsibility? I don't mean to come across as a whining doctor who wants everyone to bow down to me, but it is a valid question. We as physicians spend so much time trying to "mitigate risk" by talking about charting better, communication, setting up call-back systems, modifying our EMR systems, and many many, many other actions. But at no point do we ever have a discussion about where the patient fits into this.

When, for instance, is the noncompliant diabetic with an HbA1c of 9 suing his doctor after a leg amputation, culpable? What about that Achilles rupture surgery that went bad in a smoking patient? The list goes on.

I'll leave you with this thought. When I was a resident, one of my attendings would tell his surgical patients that the surgery was only 30% of the job and that the patient was responsible for the rest of the healing process. If this is true, then why are doctors today saddled with 100% of the medicolegal liability of patient care? Because…remember…whatever happens it's your fault.

Best wishes.

Jarrod Shapiro, DPM
PRESENT Practice Perfect Editor
[email protected]

References:

1. Medscape Malpractice Report: The Experience of Getting Sued. July 24, 2013. https://www.medscape.com/features/slideshow/malpractice-report/public?src=soc_stm_mal Last accessed November 12, 2013.

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